2018 Y L R 1917
[Balochistan (Sibi Bench)]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
REGIONAL ELECTION COMMISSION, NASEERABAD---Appellant
Versus
ABDUL GHAFOOR--- Respondent
Criminal Acquittal No.(s) 121 of 2015, decided on 23rd October, 2017.
Representation of the People Act (LXXXV of 1976) ---
----Ss. 52, 78(3)(d), 82 & 94--- Constitution of Pakistan, Art. 62(f) --- Conduct of General
Elections Order, 2002, Art. 8- A---Election dispute ---False declaration --- Accused was alleged
to have filed fals e declaration with regard to his educational qualification--- Trial Court
acquitted accused of the charge ---Validity ---Judgment passed by Trial Court was in violation
of law and suffered from material illegalities and irregularities ---Trial Court failed to call for
record of Election Commission from concerned offices and did not provide full and fair
opportunities to the parties to produce their evidence pro -contra --- Judgment passed by Trial
Court was non- speaking, perverse, ridiculous and not sustainable --- High Court directed Trial
Court to call for record and provide full and fair opportunities to both parties to lead evidence
resultantly, judgment was set aside and case was remanded to Trial Court for decision afresh -
-- Appeal was allowed accordingly.
C. As. 411 to 414 of 2012 rel.
Muhammad Rasheed for Appellant.
Muhammad Sadique Ghuman for Respondent.
Jameel Akhtar Gajani, D.P.G. for the State.
Date of hearing: 14th September, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Crimina l Acquittal Appeal
No.(s) 121 of 2015 filed appellant Regional Election Commissioner, Naseerabad at Dera Murad Jamali, against the judgment dated 17th June, 2015 (hereinafter referred as, "the impugned judgment") passed by the learned Sessions Judge, Nasee rabad, at Dera Murad
Jamali (hereinafter referred as, "the trial Court"), whereby the respondent/accused was acquitted of the charge.
2. Facts of the case are that on 01st April, 2014, the complainant Wali -ur-Rehman
Regional Election Commissioner, Naseerab ad at Dera Murad Jamali filed complaint before
the trial Court, wherein stating therein that the respondent/accused contested election for the
Provincial Assembly from constituency No.PB -29 Naseerabad -II in the General Election of
2013, as such, the respondent/accused filed his nomination papers before the Retuning
Officer for contesting of election from the above constituency and thereafter nominating papers of respondent/accused were accepted as per rule. But the learned Election Tribunal rejected the nom ination papers and declared the respondent/ accused ineligible to contest the
election of 2013. However, the respondent/accused filed C.P. before the Hon'ble High Court of Balochistan, Quetta, which was dismissed by order dated 18th April 2013, as such, the respondent/ accused approached the Hon'ble Supreme Court of Pakistan in C.P.L.As. Nos. 411 to 414 of 2013, however, the Hon'ble Supreme Court of Pakistan has dismissed the appeal of the respondent/ accused and made serious observation against the respondent, in pursuance of order of Hon'ble Supreme Court of Pakistan the appellant/ complainant filed direct complaint No.77/2014 before the learned Sessions Judge, Naseerabad at Dera Murad Jamali against the respondent/ accused on the direction of Hon'ble Elec tion Commission of
Pakistan and prayer was made that as the respondent/accused has filed a false affidavit within the meaning of Article 62(F) of the Constitution of Islamic Republic of Pakistan, 1973.
3. The learned DPG assisted by the learned Counsel for the appellant, Regional Election
Commissioner, Naseerabad at Dera Murad Jamali contended that the impugned judgment
passed by the learned trial Court suffers from mis -reading, non -reading and mis -appreciation
of evidence and also suffers from mis -interpre tation of law; that the respondent submitted
false statement and false documents with regard to his qualification at the time of filing of
nomination papers and his nomination papers were challenged before the Hon'ble High Court, Election Tribunal and ther eafter, filed appeal before the Hon'ble Supreme Court of
Pakistan, wherein it was categorically observed that the respondent/ accused has produced false and fabricated affidavit in violation of Article 62(f) of the Constitution, but the learned
trial Court failed to consider this aspect of the case; that the learned trial Court dismissed the
complaint of the appellant merely on technicalities; that the appellant produced documentary evidence against the accused/ respondent, but the learned trial Court has f ailed to consider the
same; that the appellant was not given proper opportunity to produce further documentary evidence against the accused/ respondent, as such, the appellant was condemned unheard, hence the impugned judgment is not sustainable and liable to be set aside.
4. Conversely, the learned counsel for the accused/ respondent vehemently opposed the
arguments so advanced by the learned State counsel and contended that the complainant has failed to produce any sort of evidence against the respondent to connect the respondent with the commission of offence; that sufficient opportunities were provided to the appellant to produce evidence and the appellant was failed to bring on record any evidence against the respondent and only recorded the statement of its representative and the learned trial Court after proper appreciation of evidence has rightly acquitted the respondent from the charge. He prayed for dismissal of the appeal.
5. We have heard the learned counsel for the parties and perused the record minutely
with their valuable assistance. The record reveals that the respondent/ accused contested
General Elections in 2002 from the constituency of the PB -29 Naseerabad -II at the time of
filing of nomination papers, he produced a Sanad- ul-Fragh and he al so filed affidavit to the
effect that Sanad is equivalent to bachelor degree, whereafter on the basis of such Sanad -ul-
Fragh his nomination papers were accepted by the Returning Officer and other contesting candidate raised objection over the nomination pa pers and affidavit/ Sanad of the respondent.
On the basis of alleged Sanad, the respondent was declared as returned candidate, however, his election was challenged by one Muhammad Sadiq Umrani by filing an election petition
under Section 52 of Representati on of People Act, 1976 before the Election Tribunal alleging
therein that the appellant was not qualified to contest the election as he did not possess
educational qualification as provided under Article 8- A of Conduct of General Election
Order, 2002 and t he Sanad produced by him along with nomination papers was firstly a
bogus Sanad as he never studied in the Madrissa, which issued the Sanad and secondly it was not equivalent to the bachelor degree, the minimum qualification at the relevant time provided f or becoming member of the Provincial Assembly was B.A.
6. After dilating upon the pleadings and evidence of the parties, the learned Election
Tribunal declared that the appellant was not qualified to contest election and declared the election of PB -29 of N aseerabad -II Balochistan as vide judgment dated 15th December,
2003, the said findings of the learned Election Tribunal were challenged by appellant through an appeal in the Hon'ble Supreme Court of Pakistan, however, the same appeal came for hearing on 18th June, 2009, when the same was disposed of having become infructuous by
efflux of time. It is further alleged by the complainant that the respondent while contesting
the election of Local Bodies in 2001 had submitted its nomination papers wherein, mentioned
his qualification as Matric while in General Election held in 2002 he produced a Sanad known as Sanad- ul-Faragh allegedly issued by the Madrassa Al -Quran -ul-Arabia Behr -ul-
Uloom Dadria Abdullah Dahan Shikarpur, which according to the respondent was equivalent to graduation. It is further submitted by the appellant that while contesting General Election 2013 from the said constituency, he was being disqualified for the reasons that he had submitted a false statement/ declaration in his nomination papers in the year 2002 and his Sanad was not recognized by the HEC equivalent to BA and issued from the recognized Madrissa affiliated with the Wafaq -ul-Madaris to resolve this question the Hon'ble Supreme
Court of Pakistan held in its judgment dated 24th May, 2013 in C.As. 411 to 414/2012 as
under:
12. "Since the Sanad produced by the appellant while contesting election, 2002 has been declared not equivalent to B.A. degree for the reasons mentioned in the preceding paragraphs, therefore, appellant was not at all qualified to contest election.
Now the question arises as to whether the appellant is disqualified to contest elections, 2013 or not. In this regard it is noticed that while producing aforesaid Sanad, the appellant sworn an affidavit to the effect that th e Sanad produced by him was issued
to him by a recognized institution and equivalent to a bachelor degree made false statement and submitted false or incorrect declaration in respect of his educational qualification, thus, he was not righteous, sagacious, non- profligate, honest and Ameen
within the meaning of Article 62(f) of the Constitution of Islamic Republic of Pakistan, 1973, as such, was not qualified to be elected or chosen as a member of Majlis -e-Shoora.
13. Since as per conclusions drawn by this Court in Sanaullah Khan's case (supra) that the appellant knowingly and deliberately submitted a degree for becoming a parliamentarian which was not equivalent to B.A., therefore, had not only committed an offence by doing so but also defrauded the voters and the nation, ' as such, was disqualified to contest the election for not fulfilling the conditions contained in Article 62(1)(d) and (f) of the Constitution of Islamic of republic of Pakistan, 1973. This Court in the case of Malik Iqbal Ahmed Langrial v. Jamshaid Alam and others (PLD 2013 SC 179) has held that a person who indulges into using unfair means in procuring his educational qualifications does not deserve to claim to be an honest, righteous or Ameen person so that he be assigned the high responsi bilities of
performing national functions of running the affairs of the country. Relevant paras
therefrom are reproduced hereinbelow: -
"10. .... It is to be noted that Article 62(1)(f), as it stood prior to 18th Constitutional Amendment, provides that a p erson shall not be qualified to be elected or chosen as a
Member of Majlis -e-Shoora (Parliament) unless he is sagacious, righteous, non-
profligate, honest and ameen. It is clear from the plain reading of the said Article that there is no restriction upon t he Court/Tribunal to declare any person to be not
sagacious, righteous or ameen. Admittedly the appellant used fake documents not only in the year 2002 but also in the year 2008 and also made false declaration making him liable to criminal action under cer tain provisions of P.P. C. In the case of
Muddasar Qayyum Nahra v. Ch. Bilal Ijaz (2011 SCMR 80) this Court had upheld the findings of Election Tribunal, Punjab whereby it was held that a person who indulges into using unfair means in procuring his educati onal qualifications does not deserve to
claim to be an honest, righteous or Ameen person so that he be assigned the high responsibilities of performing national functions of running the affairs of the country. The spirit with which the words sagacious, righteous, non- profligate, honest and
Ameen have been used by the Constitution of Islamic of Republic of Pakistan, 1973 for the eligibility of the candidates contesting the elections of Members National or Provincial Assembly cannot be allowed to be frustrate d if persons who secure their
educational documents through unfair means and are found guilty of such a condemnable act by the competent authority are allowed to be given entry into the doors of National or Provincial Assemblies of our country. The respond ent (therein) is
thus not worthy of credence and cannot be allowed to be entrusted with State responsibilities of law Making; to be in -charge of the National Exchequre or be
eligible to represent the people of Pakistan."
"12. In a recent case titled as Syed Mehmood Akhtar Naqvi, v. Federation of Pakistan (Constitution Petition No.5 of 2012) this Court has held that whoever makes false declaration at the time of filing of nomination papers, makes himself liable to be disqualified from being elected or chosen as Member of the Majlis -e-Shoora
(Parliament) or a Provincial Assembly for making misstatement or concealment of fact, and also exposes himself to criminal proceedings contemplated under sections 193, 196, 198 and 199 P.P.C."
7. In view of the above ju dgment of Hon'ble Apex Court wherein the Hon'ble Supreme
Court of Pakistan held that whoever makes false declaration at the time of filing of nomination papers, makes himself liable to be disqualified from being elected or chosen as Member of the Majlis -e-Shoora (Parliament) or a provincial Assembly for making
misstatement or concealment of fact, and also exposes himself to criminal proceedings contemplated under sections 193, 196, 198 and 199, P.P.C.
8. The impugned judgment passed by the learned trial Court is sheer violation of law and
suffers from material illegalities and irregularities without adverting to the findings of the Hon'ble Supreme Court of Pakistan and the provision Constitution of Islamic Republic of Pakistan, Representation of People Act, 1976. Article 8- A the conduct of General Election
2002 and Pakistan Penal Code. The learned trial Court had failed to call for record of respondent from the concerned institutions and provide full and fair opportunities to the parties to produce their evidence pro -contra, hence in view of the above, the impugned
judgment is non- speaking, perverse, ridiculous and not sustainable.
For the forgoing reasons, the criminal acquittal appeal is partly allowed and the
impugned judgment dated 17th June, 2015 is set aside and the case is remanded to the learned
trial Court with the directions to call for record and provide full and fair opportunities to both the parties to lead evidence viz a viz and decide the matter afresh in the light of judgments of Hon'ble Suprem e Court of Pakistan strictly in accordance with law within a period of four
months.
MH/173/Bal. Case remanded.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.